Bosco Construction (Attorney Nam-jin et al., Counsel for the defendant-appellant)

Defendant (Law Firm Sejong, Attorney Choi Young-soo, Counsel for the defendant-appellant)

November 20, 2007

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant shall deposit 2.75 billion won with the Daegu District Court in accordance with the Daegu District Court Order for the seizure and collection of claims 2007TTTTTT 3964 and 2.75 billion won, and shall report the reasons therefor.

1. Basic facts

The following facts are either disputed between the parties, or acknowledged in full view of the purport of the whole pleadings as stated in the evidence Nos. 1, 2, 3, 5 through 7, 9, 4-1 through 3, 8-1 through 23, 1, 2, 3, 5 through 7, 9, 4-1 through 3, and 8-1 through 23.

A. Plaintiff’s claim for construction price

(1) On October 2002, the Plaintiff and the non-party 2 Co., Ltd. jointly contracted from the non-party 1 Co., Ltd. for construction of ten apartment units and one living facilities on the ground of the Daegu-gu Seocheon-dong (Land Number omitted) Seocheon-gu (hereinafter “Seocheon-dong”) (=Plaintiff Sector 81,008,255,000 + KRW 13,109,219,000).

D. On December 5, 2006, the Plaintiff received approval from the competent authority for the pre-use inspection on the entire new construction project. Nonparty 1 Co., Ltd., by December 11, 2006, paid only KRW 70,357,895,589 out of the construction cost of Plaintiff 1’s portion to the Plaintiff until December 11, 2006, and did not pay the remainder KRW 10,650,359,411 to the Plaintiff.

B. The defendant's seizure and collection order

(1) On March 6, 2007, Nonparty 1 Co., Ltd. drafted a notarial deed to the Defendant on March 6, 2007, stating that “Around March 22, 2007, Nonparty 1 Co., Ltd. shall pay 2.75 billion won to the Defendant with investments and investment profits, etc., and in the event of delay, it shall accept that there is no objection even if compulsory execution.”

B. On March 29, 2007, on the basis of the above notarial deed, the defendant received a seizure and collection order as to the deposit claims against the non-party 1's Daegu Agricultural Cooperative Co., Ltd. (hereinafter "Dong Daegu Agricultural Cooperative"), using the Daegu District Court 2007TTTTT No. 3964 on March 29, 2007 (hereinafter "Dong Daegu Agricultural Cooperative"), and on April 16, 2007, the defendant collected 2.75 billion won from Dong Daegu Agricultural Cooperative, and thereafter reported the collection to the enforcement court on April 23, 2007.

C. Provisional seizure against the Plaintiff’s claim

(1) On April 16, 2007, the Plaintiff filed an application with the Daegu District Court 2007Kadan6763 for provisional attachment of deposit claims of 3.9 billion won against the Daegu Agricultural Cooperative Co., Ltd. in order to preserve 4.2 billion won among the above claim for the construction payment against the non-party 1 Co., Ltd., and the Daegu District Court accepted it and rendered a provisional attachment of the claim against the above purport on April 18, 2007, which was served to the Daegu Agricultural Cooperative on April 18, 2007.

D. Meanwhile, on April 20, 2007, Nonparty 1 Co., Ltd. prepared a notarial deed on April 20, 2007, stating that “Until April 27, 2007, Nonparty 1 Co., Ltd. paid the Plaintiff the said construction cost of KRW 10.65 billion to the Plaintiff, and in the event of delay, even if compulsory execution is enforced, it shall be recognized that there is no objection.” On April 28, 2007, the Plaintiff obtained the execution clause on the said notarial deed, and demanded the enforcement title to pay KRW 2.75 billion collected by the Defendant from the Daegu Agricultural Cooperatives to the execution court.

Secondly, on April 30, 207, on the basis of the above notarial deed, the Plaintiff filed an application for the seizure and collection order of the claim with the Daegu District Court 2007TTTTTTT 5305, and the Daegu District Court accepted it on May 2, 2007, and accepted it on May 2, 2007, and transferred the above provisional seizure on the deposit claim of 3.9 billion won against the Daegu Daegu Agricultural Cooperatives of the non-party 1 to the provisional seizure, and attached and collected the deposit claim of 6.45 billion won, which is the amount equivalent to the remainder of the construction cost against the non-party 1 corporation.

2. Determination

A. The assertion

The plaintiff, as the cause of the claim, made a provisional attachment against the non-party 1's Daegu Agricultural Cooperatives, which the defendant collected from Dong Daegu Agricultural Cooperatives based on the collection order, before reporting the deposit claim amount to the court of execution, the plaintiff filed a provisional attachment against the non-party 1's Daegu Agricultural Cooperatives, and the plaintiff asserted that the provisional attachment, which the plaintiff received, was served to the non-party 1's Daegu Agricultural Cooperatives prior to the defendant's report on the collection, and the defendant deposited the amount of the collection claim and reported the reason (limited to the case where other provisional attachment was made before the collection report was made) pursuant to Article 236 of the Civil Execution Act, and even if the provisional attachment, which the plaintiff received, has no effect as a provisional attachment, it shall be recognized as the validity of demand for distribution, so the defendant shall deposit the amount of the collection claim and report the reason (

B. Determination

(1) Article 236(2) of the Civil Execution Act provides that when a creditor, who has obtained a collection order, has made a seizure, provisional seizure, or demand for distribution prior to a collection report, the collection creditor shall deposit the collected amount immediately and report the reasons therefor. Article 247(1) provides that the creditor, who has the right to preferential reimbursement under the Civil Act, the Commercial Act, and other Acts, and the creditor who has an executory exemplification, may demand a distribution to the court of execution until the collection creditor files a report on the collection under Article 236. Article 252 Subparag. 2 of the Civil Execution Act provides that the collection creditor shall commence the distribution procedure when the collection creditor deposits the collected amount. In full view of these provisions, the collection creditor shall deposit the collected amount when the creditor conflicts with the creditor who is to receive a distribution from the collected amount, that is, when another creditor who has made a seizure, provisional seizure, or made a demand for distribution prior to the collection report.

However, since a creditor who collects a claim upon obtaining a collection order is a kind of collection agency according to the authorization of the court of execution and is engaged in collection from a garnishee, even as a third debtor makes payment to a legitimate collection creditor, the seizure order becomes effective upon delivery to the third debtor. Meanwhile, as long as the seizure claim is extinguished due to the payment by the third debtor, even if the third debtor's payment, even if the third debtor requested a seizure order against the same seizure claim before the repayment and received a seizure order, it cannot be deemed that the seizure order takes effect upon the third debtor's payment to the third debtor (see Supreme Court Decision 2003Da29937, Jan. 13, 2005). The legal principles as to the effect of the seizure order also applies to the provisional seizure of a claim.

D. We examined the instant case. The provisional attachment decision issued by the plaintiff will take effect on April 18, 2007, which was served on the 3rd Daegu Agricultural Cooperative Co., Ltd., the garnishee, the debtor non-party 1 corporation, paid the debt amount to the defendant on April 16, 2007, which was the third debtor, and thus, the provisional attachment against the defendant's money collected by the defendant cannot be deemed as effective. Furthermore, the third debtor's application for provisional attachment or seizure order was made by other creditors before the collection creditor pays the debt amount to the collection creditor, or the provisional attachment or seizure order was served to the third debtor before the collection creditor reports the collection to the collection creditor, and it cannot be acknowledged that the claim for distribution was made by the collection creditor. Accordingly, the defendant cannot be deemed as being concurrent with the creditor who is entitled to receive dividends from the collected money, and the defendant is not obligated to deposit the collection money.

3. Conclusion

Therefore, the plaintiff's claim of this case, which is premised on the defendant's obligation to deposit the collection money, is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Sung-sung (Presiding Judge)